In 2012, the headlines were dominated by decisions and trends related to the NLRB's and EEOC's examination of workplace policies affecting the rights of employees, whether on the clock or off. Often, these decisions also related to the right to discuss work-related matters. The agendas of the EEOC and NLRB are likely to continue with President Obama's ability to fill any vacancies through the end of his term in 2016. Additionally, many believe that he could be responsible for nominating at least one, if not three, Supreme Court justices.

The NLRB issued multiple opinions and provided guidance in areas implicating employees' rights under Section 7 of the NLRA, i.e., concerted activities. Those of you who may be tempted to skim this section thinking that the NLRB's guidance is inapplicable to you, don't. The NLRB's jurisdiction includes union and non-union settings.

• The NLRB issued its most recent report on social media cases. This report, the third in less than a year, is invaluable to employers. It construes the legality of multiple social media policies under the NLRA and goes so far as to approve one in its entirety. Employers, this is your model policy. Additionally, the NLRB is just beginning to issue “Facebook firing” decisions, each construing whether the conduct at issue can be characterized as protected, concerted activity.

• The NLRB found what would be considered a “standard” employment at-will handbook statement overly broad and discriminatory. Its fatal flaw: the statement specified that the at-will nature of employment could only be modified in writing. The NLRB reasoned that such language could be interpreted by employees to mean that even union representation and collective bargaining could not alter at-will status, thus discouraging concerted activity.

• Similarly, the NLRB found that blanket policies which require confidentiality during workplace investigations presumptively violate section 7 of the NLRA. Employers must now make individualized determinations as to whether confidentiality should be required based on the facts of each and every investigation. Effectively, this means less employer control over investigations and, perhaps, an impaired ability to run a workplace free of unlawful or dangerous activity. This was the subject of a prior two-part blog of mine.

The EEOC also chimed in on workplace investigations.

• Around the time of the NLRB decision, a Buffalo, NY EEOC field office issued a pre-determination letter finding that blanket confidentiality policies violated Title VII of the Civil Rights Act. The EEOC reasoned that an employee could incorrectly interpret the confidentiality requirement as a prohibition from even contacting the EEOC to discuss a complaint or file a charge. To date, the EEOC has issued no further guidance. This was the subject of the second installment of my two-part blog.

Most notably, the EEOC has issued a Strategic Plan for 2012-2016. There, the EEOC identified five areas of increased scrutiny. Employers, this is the EEOC's playbook for the next four years.

1. Class/systemic discrimination

2. Protecting vulnerable workers

3. Addressing issues arising under the ADA

4. Title VII coverage for LGBT individuals

5. Accommodations for pregnancy

The proof is in the pudding:

• Just recently, and as discussed in last week's blog by Patricia F. Weisberg, the EEOC issued new workplace guidelines to protect victims of domestic violence and stalking under Title VII and the ADA. With this one act, the EEOC touched on three of the five categories listed above.

• The EEOC recently instituted multiple class actions alleging sexual harassment and abuse on behalf of farm workers who are “particularly vulnerable due to isolated working conditions and lack of familiarity with the protections of the law.”

The EEOC is also tipping its hand by, for the first time, providing charge data broken down by type, state and year. The statistics show trends for FY09 – FY11. For example, Ohio-based charges for sex and age discrimination and Title VII-retaliation fell considerably in FY11 after a significant spike in FY10. Watch for areas implicated by the EEOC's Strategic Plan (e.g., sex discrimination and retaliation on behalf of LGBT individuals, disability discrimination, etc.) to increase over the next four years.

Lastly, the Supreme Court recently heard oral arguments in a case that will decide who is a “supervisor” for purposes of vicarious employer liability under Title VII. The Sixth Circuit, which includes Ohio, finds generally that supervisors have the power to hire, fire, demote, promote or discipline. A “supervisor” in other jurisdictions, however, is defined more broadly and can include employees who direct and oversee a colleague's daily work. Depending on the outcome of this case, Ohio employers could face increased liability for the actions of employees who were not historically considered supervisors. The case is Vance v. Ball State University, 646 F. 3d 461 (7th Cir. 2011) (Race discrimination under Title VII).

In short, it appears that the labor- and employee-friendly trends seen in the President's first term will continue well into the second. Employers, be sure to follow the headlines and keep workplace rules and policies up to date.

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